Benedict v Olde; in the matter of ATS (Asia Pacific) Pty Ltd [2011] FCA 1008

Benedict v Olde; in the matter of ATS (Asia Pacific) Pty Ltd [2011] FCA 1008

Given company solvency, petitioning creditor and major statutory creditors' non-opposition, and payment regime for creditor obligations, court's discretion exercised to terminate winding up under s 482(1), noting undertakings addressing accruing statutory entitlements. Court directs, under s 479(3), that the liquidator is justified in not opposing the termination and payment regime due to uncertainty in potential income tax liability from trading during liquidation.

Jurisdiction
Australia
Judgment Date
09 August 2011
Procedural Posture
Corporate Insolvency/winding Up Application / Application for Order Terminating Winding Up
Outcome
Application granted; winding up of ATS (Asia Pacific) Pty Ltd (in liquidation) terminated conditional on payments
Legal Topics
['winding Up Termination' "liquidator's Liability" 'creditor Payments' 'income Tax Liability During Liquidation']
['corporations Law' 'insolvency' 'taxation'] ['winding Up Termination' "liquidator's Liability" 'creditor Payments' 'income Tax Liability During Liquidation']

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Procedural Posture

Corporate Insolvency/winding Up Application / Application for Order Terminating Winding Up

Legal Issues

  1. 1 ['Whether the winding up of ATS (Asia Pacific) Pty Ltd should be terminated under s 482(1) of the Corporations Act 2001 (Cth)' 'Whether the liquidator is justified in not opposing the termination order and regime of payment under s 479(3) of the Corporations Act 2001 (Cth)' 'Potential liability of liquidator for company income tax under s 254 of Income Tax Assessment Act 1936 (Cth)']

Ratio Decidendi

Given company solvency, petitioning creditor and major statutory creditors' non-opposition, and payment regime for creditor obligations, court's discretion exercised to terminate winding up under s 482(1), noting undertakings addressing accruing statutory entitlements. Court directs, under s 479(3), that the liquidator is justified in not opposing the termination and payment regime due to uncertainty in potential income tax liability from trading during liquidation.

Court Disposition

Application granted; winding up of ATS (Asia Pacific) Pty Ltd (in liquidation) terminated conditional on payments

Orders

  • ['Application conditional upon payment to trade creditors, statutory obligations, employee entitlements, and expenses incurred by liquidator as listed' '$160,833.00 to be remitted to ATS (Asia Pacific) Pty Ltd for distribution to employee superannuation funds or held pending details, or paid to Australian Taxation...